02/28/2022
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
September 16, 2021 Session
JAMES A. WELCH, ET AL. v. OAKTREE HEALTH AND
REHABILITATION CENTER LLC D/B/A CHRISTIAN CARE CENTERS
OF MEMPHIS, ET AL.
Appeal from the Circuit Court for Shelby County
No. CT-000544-18 Jerry Stokes, Judge
___________________________________
No. W2020-00917-COA-R3-CV
___________________________________
This appeal involves an arbitration agreement executed in connection with a patient’s
admission to a nursing home. The arbitration agreement was executed by the patient’s
brother, who had been designated as the patient’s attorney-in-fact for health care pursuant
to a durable power of attorney for health care executed by the patient several years earlier.
When the patient’s brother filed this wrongful death suit in circuit court, the nursing home
defendants filed a motion to compel arbitration. The patient’s brother then asserted that he
did not have authority to bind the patient to the arbitration agreement because the patient
had been mentally incompetent when he executed the durable power of attorney for health
care years earlier. The defendants argued that the trial court was not permitted to “look
beyond” the durable power of attorney for health care to determine the competency of the
patient at the time of its execution. The trial court ruled that it would “look beyond” the
power of attorney for health care in order to consider the patient’s competency and allowed
the parties to engage in discovery related to the issue of incompetence. Discovery ensued,
and the parties submitted additional evidence regarding the patient’s competency. The trial
court then found by clear and convincing evidence that the patient was incompetent at the
time the durable power of attorney for health care was executed. As a result, the trial court
concluded that the patient’s brother lacked authority to sign the arbitration agreement as
attorney-in-fact for health care. The trial court denied the motion to compel arbitration,
and the defendants appealed. Pursuant to the Tennessee Supreme Court’s decision in
Owens v. National Health Corp., 263 S.W.3d 876 (Tenn. 2007), we hold that the trial court
erred in looking beyond the durable power of attorney for health care to examine the
patient’s competency at the time it was executed. We reverse the decision of the trial court
and remand for further proceedings consistent with this opinion.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded
CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and KENNY W. ARMSTRONG, J., joined.
Craig C. Conley and Quinn N. Carlson, Memphis, Tennessee, and Christy Tosh Crider,
Nashville, Tennessee, for the appellants, Oaktree Health and Rehabilitation Center, LLC
d/b/a Christian Care Center of Memphis; Care Centers Management Consulting, Inc.; and
Christian Care Center of Memphis, LLC.
Cameron C. Jehl, Carey L. Acerra, Deena K. Arnold, and Eric H. Espey, Memphis,
Tennessee, for the appellee, James A. Welch, Next of Kin and Administrator ad Litem of
Estate of David Neil Welch, deceased, and on behalf of the wrongful death beneficiaries
of David Neil Welch.
OPINION
I. FACTS & PROCEDURAL HISTORY
Plaintiff James A. Welch filed this lawsuit as next of kin and administrator ad litem
of the Estate of David Neil Welch, deceased, and on behalf of the wrongful death
beneficiaries of David Neil Welch. The complaint asserted claims for health care liability,
ordinary negligence, and wrongful death, arising from David Neil Welch’s brief residency
at a nursing home operated by the defendants, Oaktree Health and Rehabilitation Center,
LLC d/b/a Christian Care Center of Memphis; Care Centers Management Consulting, Inc.;
and Christian Care Center of Memphis, LLC (“Nursing Home Defendants”).
The Nursing Home Defendants filed a motion to compel arbitration and stay the
proceedings, asserting that Plaintiff James A. Welch had executed an arbitration agreement
on behalf of his brother David Neil Welch on the date of David’s admission to the Christian
Care Center facility in November 2016. The Nursing Home Defendants attached the
arbitration agreement executed by James as well as a “Power of Attorney for Health Care”
executed by David in 2012, designating James as his attorney-in-fact for health care. James
had signed the arbitration agreement in the space marked for “Resident Representative,”
and his “Relationship to Resident” was noted as “Brother [and] POA.” The durable power
of attorney for health care consisted of four pages and stated, in pertinent part, “I designate
the following individual as my agent to make health-care decisions for me: Agent’s Name:
James A. Welch.” It stated that the agent’s authority to make health care decisions would
take effect immediately. It was signed “David N. Welch” and dated January 30, 2012. It
was also signed by two witnesses who declared under penalty of perjury that the principal
was personally known to them, signed or acknowledged the document in their presence,
and “appears to be of sound mind and under no duress, fraud or undue influence[.]”1
1
The two witnesses listed home addresses in Florida but made their declarations “under penalty of
-2-
The Nursing Home Defendants filed a memorandum stating that the parties had
engaged in arbitration-related discovery. They submitted deposition testimony of James
Welch and Carol Reeves, the former admissions coordinator at the facility. Although Ms.
Reeves could not recall anything about David’s admission, she testified that family
members would usually sign the admissions paperwork before the patient arrived and
would have to show her any power of attorney or similar document they had. The Nursing
Home Defendants also presented James’s deposition testimony that he had been acting as
David’s attorney-in-fact for health care for years to make health care decisions for David,
and no health care provider had ever refused services for David when presented with the
power of attorney for health care. The Nursing Home Defendants argued that the trial court
should look no further than the power of attorney for health care and that it would be
inappropriate to consider the circumstances surrounding its execution according to the
Tennessee Supreme Court’s decision in Owens v. National Health Corp., 263 S.W.3d 876
(Tenn. 2007).
James filed a response to the motion to compel arbitration, claiming that he did not
have authority to enter into any type of agreement on behalf of his brother due to David’s
incapacity. Alternatively, he argued that the arbitration agreement was unconscionable.
James contended that David was mentally incompetent to sign the durable power of
attorney for health care in 2012 because David was born with Down Syndrome and could
not cognitively understand what he was signing. James relied on his own deposition
testimony about David’s condition, along with an affidavit of a physician who had
reviewed David’s medical records. James argued that the Nursing Home Defendants’
reliance on Owens was misplaced because the cited language was dicta and not binding
precedent. Alternatively, they argued that the reasoning of Owens was wrong and that the
statute relied on by the Court was inapplicable.
James submitted additional deposition testimony. During his deposition, James
testified that David had resided for years in Mississippi at a group home for people with
various types of learning disabilities and other conditions.2 He said the home had work
facilities and recreational facilities to provide an “active life” for residents. Prior to his
residency there, David had resided with his parents in Washington. James testified that
throughout David’s entire life, “his cognitive ability was very, very, very not existent.” He
said David had attended a school as a child but that it was not a typical school. James
testified that David “didn’t have the ability to learn.” He said that David “had the mind of
a two-year-old” and could not read or write besides his name.
James testified that he “kind of took it upon [him]self” to obtain the power of
perjury pursuant to Section 97-9-61, Mississippi Code of 1972.” The document states, “This is a
RocketLawyer.com document.”
2
James lived in Florida, worked as a real estate broker, and was in his 70s at the time of his
deposition. David died at the age of 62.
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attorney for health care in 2012 because David needed cataract surgery, and the Florida
doctor who would be performing the surgery “indicated that I would have to have his
medical power of attorney to get the procedure scheduled and done.” James testified that
he found the form online and learned that in Mississippi, where David resided, the
document did not have to be notarized but did require a witness. James said he printed the
form and had David sign his name on the final page but that David “had absolutely no
concept of what this was all about.” According to James, “I just said, ‘Write your name
here, David.’” James testified that the two witnesses who signed the document under
penalty of perjury stating that David was personally known to them and appeared to be of
sound mind were his wife, who was now deceased, and his long-time neighbor. James said
he presented the power of attorney for health care at the eye clinic but stated, “This is a
power of attorney that I printed off online. It’s there. It is what it is. I have absolutely no
concept of whether or not this is a legal deal or not, but there it is.” James said he later
used the power of attorney for health care when David had surgery for bone-anchored
hearing aids, and he had presented it when David was admitted to a couple of hospitals.
However, he said that any time he had presented the document, he stated, “I have this. I
don’t know how legal it is. I don’t know how he would be . . . have ever been considered
competent enough to give it to me, but let’s get David taken care of.” He testified that no
health care provider ever refused to provide services for David after he presented the
document. James testified that David was admitted to Christian Care Center in 2016 with
diagnoses of Lymphedema (swelling of the lower legs) and Down Syndrome. James and
his sister had toured various facilities and ultimately decided on Christian Care Center.3
James also submitted deposition testimony of Ms. Reeves, who stated that although she
had not met David at the time of the admissions process, the facility would have been aware
of his diagnosis of Down Syndrome by that time.
James submitted the affidavit of a physician who had reviewed David’s medical
records in order to opine as to his mental competency throughout his adult life and his
ability to comprehend the power of attorney for health care for purposes of this lawsuit.
The physician’s affidavit states that David had resided at the group home in Mississippi for
28 years. He stated that Down Syndrome results in cognitive impairments that are present
throughout the lifetime of the individual. According to the doctor, records from the group
home showed that David “exhibited clear indications of impairments, limitations, and
behaviors consistent with Down Syndrome throughout his residency, as well as indicate
that [David] had a history of limited cognitive and mental capabilities.” For example, the
records contained multiple entries in which David did not write or spell his name correctly.
The doctor also described numerous behavioral incidents that demonstrated, in the doctor’s
opinion, “a person [] who is unable to understand in a reasonable manner the nature and
consequences of his/her actions.” The doctor also reviewed the records from the nursing
home and concluded that they showed similar limitations and impairments upon his
3
David had also executed a durable power of attorney for financial management in 2006,
designating his sister as his attorney-in-fact.
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admission in 2016. Finally, the doctor discussed James’s deposition testimony that David
was childlike and unable to learn. Thus, the doctor opined, “to a reasonable degree of
medical certainty, that David Neil Welch was not able to understand and appreciate the
nature, scope, effect, and implications of power of attorney documents during his adult
life,” including the document he executed in 2012. The doctor opined that David “was not
competent” to execute the power of attorney for health care.
After a hearing on the motion to compel arbitration, the trial court entered an order
stating that it would “look beyond” the power of attorney for health care to determine
whether David was competent when he executed the document in 2012. However, the trial
court gave defense counsel an opportunity to depose the doctor who opined as to David’s
competency and continued the hearing date. During his deposition, the doctor testified that
a diagnosis of Down Syndrome does not necessarily equate to a patient being incompetent.
He acknowledged that David had a job in the cafeteria at the group home and signed his
own consent forms for vaccinations. Still, from his review of the medical records and
testimony, the doctor believed that David was not “competent to make higher-level
decisions.” After the deposition was taken, the Nursing Home Defendants filed another
reply, arguing that the doctor’s testimony was insufficient to establish that David was
incompetent at the time of execution of the document in 2012. In response, James
maintained that the doctor’s opinion was sufficient.
Following another hearing, the trial court entered an order denying the Nursing
Home Defendants’ motion to compel arbitration. The trial court found by clear and
convincing evidence that David was incompetent and unable to read or appreciate the
gravity of signing the power of attorney for health care in 2012. As a result, it found that
the power of attorney for health care was invalid and that there was no valid agreement to
arbitrate. The court did not reach the issue of unconscionability. The Nursing Home
Defendants timely filed a notice of appeal.
II. ISSUES PRESENTED
The Nursing Home Defendants present the following issues, as we perceive them,
for review on appeal:
1. Whether the trial court erred in looking beyond the power of attorney for health
care to determine whether David was competent to execute the document in
2012; and
2. Whether the trial court erred in finding there was clear and convincing evidence
that David was incompetent when he signed the power of attorney for health
care.
For the following reasons, we reverse the decision of the circuit court and remand
for further proceedings.
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III. DISCUSSION
The first issue we must address is whether it was permissible for the trial court to
look beyond the power of attorney for health care and examine the circumstances
surrounding the execution of the document in 2012 in order to determine whether David
was competent at that time. The parties dispute whether the answer to this question is
controlled by the Tennessee Supreme Court’s decision in Owens v. National Health Corp.,
263 S.W.3d 876 (Tenn. 2007). As such, we start with a discussion of Owens.
Owens was a nursing home arbitration case in which the Tennessee Supreme Court
examined numerous issues that often arise in the context of such cases. Factually, in
Owens, the patient had executed a durable power of attorney for health care naming an
attorney-in-fact on August 5, 2003. Id. at 879. That document stated that it was to be
“construed and interpreted as a Durable Power of Attorney for Health Care and is intended
to comply in all respects with the provisions of Tennessee Code Annotated, § 34-6-201 et
seq.” Id. at 880. Three weeks after the power of attorney for health care was executed, on
August 26, 2003, the patient was admitted to a nursing home, at which time the attorney-
in-fact signed the admissions documents, including an arbitration agreement, as her
representative. Id. at 880-81.
Before the Tennessee Supreme Court, the “primary issue” was “whether a durable
power of attorney for health care authorized the attorney-in-fact to enter into an arbitration
agreement as part of a contract admitting the principal to a nursing home and thereby to
waive the principal’s right to trial by jury.” Id. at 879. On that issue, the Court concluded
that “the power of attorney authorized the attorney-in-fact to enter into the arbitration
agreement on behalf of the principal.” Id. However, the case also presented “secondary
issues relating to the arbitration agreement,” including whether the case was governed by
the state or federal arbitration act, whether the arbitration agreement was unenforceable
because a material term was incapable of performance, whether the arbitration agreement
violated federal law, and whether pre-dispute arbitration agreements in nursing home
contracts violate public policy. Id. Also, the plaintiff had argued that the agreement was
unconscionable and that “she should be permitted to conduct discovery concerning the
issues arising from the arbitration agreement.” Id. at 881-82. Ultimately, the Tennessee
Supreme Court resolved most of the issues presented but remanded the case to the trial
court for further proceedings on the issue of whether the arbitration agreement was
unconscionable and thus unenforceable. Id. at 879. The Court stated,
We are unable to resolve the question of whether the arbitration agreement
is unconscionable due to the limited nature of the factual record. We
therefore conclude that the case should be remanded to the trial court for
further proceedings on that issue. The trial court, in its discretion, may allow
the parties to conduct discovery. See Berger v. Cantor Fitzgerald Sec., 942
F.Supp. 963, 966 (S.D.N.Y.1996) (allowing discovery concerning arbitration
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agreement and enforceability issues). We express no opinion, however, as to
the ultimate resolution of the unconscionability issue.
Id. at 889. The Court’s opinion was issued on November 8, 2007.
On February 7, 2008, the Court entered an order granting in part and denying in part
a petition to rehear filed by the defendants.4 Id. at 890-91. The order stated, in part:
In their petition, the appellees allege that the Court improperly allowed
discovery as to the principal’s competence to sign the power of attorney.
Upon due consideration, the Court concludes that appellees’ petition to
rehear is well-taken as to this issue and should therefore be granted. The
petition to rehear is denied as to the remainder of the issues.
It appearing to the Court from appellees’ Petition to Rehear and appellant’s
response that footnote 4 of its Opinion filed November 8, 2007, should be
modified,
IT IS, THEREFORE, ORDERED ADJUDGED AND DECREED that the
attached Opinion be and the same is hereby substituted for that Opinion filed
in this cause on November 8, 2007, without change to this Court’s judgment
entered contemporaneously with the filing of the original Opinion on
November 8, 2007, and without the further taxing of costs.
Id. at 891. Although the original text of footnote four is unknown to this Court, footnote
four of the modified opinion now states, in its entirety:
The plaintiff also questions whether [the patient] was incompetent to
sign the nursing-home agreement when [the attorney-in-fact] executed the
contract pursuant to the power of attorney. The plaintiff asserts that the trial
court should have permitted discovery regarding the circumstances
surrounding the execution of both the nursing-home contract and the power
of attorney, which was executed only twenty-one days later. We agree that
discovery concerning whether [the patient] was incompetent to sign the
nursing-home agreement should be permitted on remand. Discovery should
not be permitted, however, concerning the validity of the power of attorney
or the circumstances surrounding its execution. See Tenn. Code Ann. § 34-
6-208 (providing immunity to health care providers who rely on decisions
“made by an attorney in fact who the health care provider believes in good
4
The “Order Granting in Part and Denying in Part Appellees’ Petition to Rehear” appears with the
opinion in the South Western Reporter and also at the end of the opinion on Westlaw.
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faith is authorized” to make health care decisions).[5]
Id. at 889 n.4.
This Court considered an argument relying on the footnote from Owens in Duke v.
Kindred Healthcare Operating, Inc., No. W2010-01534-COA-R3-CV, 2011 WL 864321
(Tenn. Ct. App. Mar. 14, 2011). In that case, nursing home defendants likewise argued
that “they were entitled to rely upon the ‘facially valid power of attorney’ and that the trial
court should not have considered whether [the patient] was competent to execute it,” based
on footnote 4 in Owens. Id. at *10. However, the particular document signed by the patient
in Duke was a “General Durable Power of Attorney,” id. at *1, not a durable power of
attorney for health care. As such, it was governed by the Uniform Durable Power of
Attorney Act, Tenn. Code Ann. § 34-6-101, et seq., and not the Durable Power of Attorney
for Health Care Act, Tenn. Code Ann. § 34-6-201, et seq. Id. at *10. Notably, we pointed
out that “[t]he Uniform Durable Power of Attorney Act, Tenn. Code Ann. § 34-6-101, et
seq., contains no provision similar to the one cited by the Court in Owens.” Id. In
conclusion, we stated, “Because, as Defendants concede, Tennessee Code Annotated
section 34-6-208 governs durable powers of attorney for healthcare, and it is inapplicable
to the general durable power of attorney executed by Mr. Duke, the Owens decision does
not prevent the trial court from considering the validity of the power of attorney in this
case.” Id. at *11.
Here, the trial court did not mention Owens in its orders. It simply stated that the
court had decided to look beyond the power of attorney for health care to determine
whether David was competent to execute that document. Thus, it is not clear to this Court
why the trial court made this decision. On appeal, James argues that Owens does not
5
The statute cited by the Court, Tenn. Code Ann. § 34-6-208, is part of the Durable Power of
Attorney for Health Care Act and provides, in relevant part:
(a) Subject to any limitations stated in the durable power of attorney for health care, and,
subject to subsection (b) and §§ 34-6-210 -- 34-6-212, a health care provider is not subject
to criminal prosecution, civil liability or professional disciplinary action except to the same
extent as would be the case if the principal, having had the capacity to give informed
consent, had made the health care decision on the principal’s own behalf under like
circumstances, if the health care provider relies on a health care decision and both of the
following requirements are satisfied:
(1) The decision is made by an attorney in fact who the health care provider believes in
good faith is authorized under this part to make the decision; and
(2) The health care provider believes in good faith that the decision is not inconsistent with
the desires of the principal as expressed in the durable power of attorney for health care or
otherwise made known to the health care provider, and, if the decision is to withhold or
withdraw health care necessary to keep the principal alive, the health care provider has
made a good faith effort to determine the desires of the principal to the extent that the
principal is able to convey those desires to the health care provider and the results of the
effort are made a part of the principal’s medical records.
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control our decision, for several reasons.
First, James contends that the discussion of this issue in Owens, in the context of its
instructions on remand, is non-binding dicta. This Court rejected a similar argument,
regarding instructions on remand, in In re Estate of Dattel, No. W2019-00800-COA-R3-
CV, 2020 WL 3169501 (Tenn. Ct. App. June 12, 2020) perm. app. denied (Tenn. Oct. 9,
2020). We noted that the final issue presented on appeal in In re Estate of Dattel had
already been “addressed” by the Tennessee Supreme Court in In re Estate of Brock, 536
S.W.3d 409, 410 (Tenn. 2017). Id. at *6. We went on to quote the final paragraph of the
Brock opinion addressing what would occur “on remand.” Id. We then addressed the
argument on appeal that the quoted language from Brock was not binding:
The Proponents contend that the main issue in Brock involved the
contestants’ standing and that the portion of the Supreme Court’s opinion
directing all of the decedent’s testamentary instruments to be submitted
together for the will contest “can at best be classified as dicta.” The
contestants’ standing was at issue in Brock, but we do not agree with the
Proponents that the Court’s opinion regarding the instruments to be
considered in determining the decedent’s valid last will and testament on
remand should be disregarded as mere dicta. “Dictum” has been described
as “a remark or opinion uttered by the way” that “has no bearing on the direct
route or decision of the case but is made as an aside.” Staten v. State, 232
S.W.2d 18, 19 (Tenn. 1950). The portion of the Brock Court’s opinion
directing all of the decedent’s wills to be submitted together for an
adjudication of the decedent’s final wishes on remand can certainly not be
said to have no bearing on the route or direction of the case. In a more recent
discussion of the meaning of dictum, our Supreme Court has written the
following:
[T]rial courts must follow the directives of superior courts,
particularly when the superior court has given definite
expression to its views in a case after careful consideration.
Taylor v. Taylor, 162 Tenn. 482, 488-89, 40 S.W.2d 393, 395
(1931); Rose v. Blewett, 202 Tenn. 153, 161-62, 303 S.W.2d
709, 712-13 (1957); Davis v. Mitchell, 27 Tenn. App. 182, 223-
24, 178 S.W.2d 889, 905-06 (1943). Accordingly, inferior
courts are not free to disregard, on the basis that the statement
is obiter dictum, the pronouncement of a superior court when
it speaks directly on the matter before it, particularly when the
superior court seeks to give guidance to the bench and bar. To
do otherwise invites chaos into the system of justice.
Holder v. Tenn. Judicial Selection Comm’n, 937 S.W.2d 877, 881-82 (Tenn.
-9-
1996) (footnote omitted). The Brock Court was speaking directly upon the
matter before it and was providing guidance to the bench and bar when it
directed all of the decedents’ testamentary instruments to be submitted
together for adjudication in the will contest.
Id. at *7.
In the referenced Holder opinion, a chancery court had concluded that a
pronouncement in a Special Supreme Court decision “was obiter dictum” and “while [the
opinion was] accorded persuasive authority, [it was] not binding on [the] Court.” 937
S.W.2d at 880-81. The Tennessee Supreme Court stated that it “need not decide” whether
the prior opinion was obiter dictum that was binding on the trial court as precedent, but
observed that, in any event, “trial courts must follow the directives of superior courts,
particularly when the superior court has given definite expression to its views in a case
after careful consideration.” Id. at 881 (citations omitted). We do the same here. It is not
necessary for this Court to decide whether the discussion of this issue in Owens would be
binding precedent. Either way, this Court is not free to disregard the discussion in Owens
directly addressing the issue before us. See, e.g., State v. Walls, 537 S.W.3d 892, 905 n.7
(Tenn. 2017) (conceding that its decision on an issue was “not technically necessary to
resolve this appeal” but noting that “clarification of this point, even in dicta, will provide
guidance to defense lawyers, prosecutors, trial judges, and members of the Court of
Criminal Appeals,” as “‘inferior courts are not free to disregard, on the basis that the
statement is obiter dictum, the pronouncement of a superior court when it speaks directly
on the matter before it’”) (quoting Holder, 937 S.W.2d at 882); Monday v. Thomas, No.
M2012-01357-COA-R3-CV, 2014 WL 1852958, at *3 n.2 (Tenn. Ct. App. May 5, 2014)
(noting that a statement in a Tennessee Supreme Court case “arguably may be considered
dicta” but quoting the language of Holder that “inferior courts are not free to disregard, on
the basis that the statement is obiter dictum, the pronouncement of a superior court when
it speaks directly on the matter before it”); Davis v. Davis, No. M2003-02312-COA-R3-
CV, 2004 WL 2296507, at *6 (Tenn. Ct. App. Oct. 12, 2004) (“Once the Tennessee
Supreme Court has addressed an issue, its decision regarding that issue is binding on the
lower courts. . . . The court has even admonished us that we are not free to disregard its
dictum when the court is speaking directly on the matter before it and it is seeking to give
guidance to the bench and bar.”) (citing Holder, 937 S.W.2d at 881-82).
As it is, we are guided by the conclusion from Owens, upon the petition to rehear,
that the Court had “improperly allowed discovery as to the principal’s competence to sign
the power of attorney.” 263 S.W.3d at 891. Even though the plaintiff had argued that “the
trial court should have permitted discovery regarding the circumstances surrounding the
execution of . . . the power of attorney,” the Tennessee Supreme Court determined that
“[d]iscovery should not be permitted [] concerning the validity of the power of attorney or
the circumstances surrounding its execution.” Id. at 889 n.4 (citing Tenn. Code Ann. § 34-
6-208 (providing immunity to health care providers who rely on decisions “made by an
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attorney in fact who the health care provider believes in good faith is authorized” to make
health care decisions)).
Although the argument was not raised in his brief on appeal, James suggested at oral
argument that the statute cited in Owens, Tenn. Code Ann. § 34-6-208, would not apply to
the power of attorney for health care in this case because “this was a Mississippi power of
attorney.” Even though the technical record in this case exceeds one thousand pages, it
contains no argument or analysis from either party regarding this issue. There is only one
brief mention of the issue in a transcript, wherein counsel for James simply stated, “I will
submit to Your Honor this power of attorney wasn’t executed pursuant to the Tennessee
Durable Power of Attorney For Healthcare Act. It was a Mississippi power of attorney that
was executed in Florida. So I just wanted to put that thought with Your Honor.” Neither
the parties nor the trial court discussed any statute or caselaw, from Tennessee or
Mississippi, relevant to this issue.
We note that the power of attorney for health care executed by David never
mentioned any controlling law that would apply to it. The only mention of any state law
is in the witness statements that were made under penalty of perjury pursuant to a
Mississippi statute, and the witnesses listed their home addresses in Florida. Tennessee’s
Durable Power of Attorney for Health Care Act provides:
A durable power of attorney for health care that is executed outside of this
state by a nonresident of this state at the time of execution shall be given
effect in this state if that durable power of attorney for health care is in
compliance with either this chapter or the laws of the state of the principal’s
residence.
Tenn. Code Ann. § 34-6-215. Neither party suggests that the power of attorney for health
care failed to comply with Tennessee law or Mississippi law.6
Nevertheless, we conclude that Tennessee’s Durable Power of Attorney for Health
Care Act does not apply to this document, for a different reason. The durable power of
attorney for health care in this case must be considered under a newer statutory scheme,
the Tennessee Health Care Decisions Act, Tenn. Code Ann. § 68-11-1801, et seq. See
Sandra S. Benson, Does Your Agent Have the Power? Extending the Power of Agents to
Bind Principals to Arbitration, 44 Tenn. B.J. 19, 20 (June 2008) (explaining that there are
“alternative statutes that can apply to health care directives” in Tennessee, as “[t]he older
statute is The Durable Power of Attorney for Health Care Act (DPAHCA) passed in 1990
and the newer act is The Tennessee Health Care Decisions Act (HCDA) passed in 2004”).
6
During his deposition, James testified about printing a form from the Internet, and he stated, “I
found out that in Mississippi, which is where he resided, that it didn’t require notarizing. I could simply
fill it out and have a witness sign it. . . . So I did that.”
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“The Tennessee Health Care Decisions Act was drafted by a volunteer group of health care
administrators, clinicians and attorneys, many of whom had experienced firsthand the
difficulties of securing valid, executed directives or obtaining consent to treatment for those
without such directives.” Charles M. Key & Gary D. Miller,7 The Tennessee Health Care
Decisions Act A Major Advance in the Law of Critical Care Decision Making, 40 Tenn.
B.J. 25, 28 (August 2004). Their intention was “to simplify formal requirements and thus
make it easier for patients to provide their instructions by broadening the spectrum of forms
patients could use.” Id. According to one of those drafters,
In an attempt to remove some of the formal impediments to persons
willing to provide advance direction to their health care providers, the
General Assembly in 2004 adopted the Tennessee Health Care Decisions Act
(HCDA). The HCDA employs simplified terminology and relaxes a number
of the formal requisites for advance health care directives. Under the HCDA,
any adult having the capacity to participate in his or her own health care
decision-making may appoint an “agent” to make health care decisions and
may give other written instructions to health care providers. The sole
requirements to survive incapacity are that the directive be in writing and
signed in the presence of either two qualified witnesses or a notary. If
witnesses are used, the statute prescribes their qualifications and the content
of their written attestation.
The HCDA did not repeal the pre-existing living will and durable
power of attorney for health care statutes. Not only does it preserve those
historic forms by its own basic terms, but the old statutes themselves remain
effective under redundant savings provisions. For example, Tenn. Code
Ann. § 68-11-1803(j) provides:
Any living will, durable power of attorney for health care, or
other instrument ... complying with the terms of title 32,
chapter 11, and a durable power of attorney for health care
complying with the terms of title 34, chapter 6, part 2, shall be
given effect and interpreted in accord with those respective
acts. Any advance directive that does not evidence an intent to
be given effect under those acts but that complies with this part
may be treated as an advance directive under this part.
As a result, many Tennessee lawyers have continued to use their old living
will and durable power of attorney for health care forms, even after the
HCDA’s enactment.
7
“Miller chaired and Key served as a member of the workgroup that developed the Tennessee
Health Care Decisions Act during the latter half of 2003.” 40 Tenn. B.J. at 31 n.aa1.
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Charles M. Key, Who Will Decide? Helping Your Clients with End-of-Life Directives, 42
Tenn. B.J. 12, 13-14 (Dec. 2006).
“The Tennessee Health Care Decisions Act outlines how a competent adult may
execute an ‘advance directive’ for health care that authorizes an ‘agent’ to make health care
decisions should the adult lose the capacity to do so.” Barbee v. Kindred Healthcare
Operating, Inc., No. W2007-00517-COA-R3-CV, 2008 WL 4615858, at *10 (Tenn. Ct.
App. Oct. 20, 2008) (citing Tenn. Code Ann. § 68-11-1803(b) (2006)). Under the HCDA,
an “‘[a]dvance directive’ means an individual instruction or a written statement relating to
the subsequent provision of health care for the individual, including, but not limited to, a
living will or a durable power of attorney for health care.” Tenn. Code Ann. § 68-11-
1802(a)(1). When the HCDA was adopted in 2004, a new section was also added to the
Durable Power of Attorney for Health Care Act, stating:
(a) A durable power of attorney for health care entered into before July 1,
2004, under this part shall be given effect and interpreted in accord with this
part.
(b) A durable power of attorney for health care entered into on or after July
1, 2004, that evidences an intent that it is entered into under this part shall be
given effect and interpreted in accord with this part.
(c) A durable power of attorney for health care entered into on or after July
1, 2004, that does not evidence an intent that it is entered into under this part
may, if it complies with the Tennessee Health Care Decisions Act, compiled
in title 68, chapter 11, part 18, be given effect as an advance directive under
that act.
Tenn. Code Ann. § 34-6-217. According to those involved with the process,
Early drafts of the HCDA provided for the repeal of the old living will and
durable health care power of attorney laws with grand-fathering provisions
and express recognition that any forms drafted in compliance with the old
laws would be recognized as advance directives; however, following an
expression of a concern by some members of the bar that such repeal would
create confusion, the statute was redrafted to leave the old laws in place. The
HCDA adopts a new section of Tenn. Code Ann. Title 34, Chapter 6
providing that durable powers of attorney for health care executed prior to
July 1, 2004 will be governed by the old law, as will instruments executed
on or after July 1, 2004 that “evidence an intent” to be governed by the old
law. Only those that do not evidence an intent to be governed by the old law
will be interpreted and applied under the new law.
Key & Miller, 40 Tenn. B.J. at 28 n.22.
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The power of attorney for health care in Owens specifically stated that it was
“intended to comply in all respects with the provisions of Tennessee Code Annotated, §
34-6-201 et seq.” 263 S.W.3d at 880. Looking to the power of attorney for health care in
this case, it does not cite to any particular governing law. As such, so long as it complies
with the HCDA, it will “be given effect as an advance directive under that act.” Tenn.
Code Ann. § 34-6-217(c); see also Key & Miller, 40 Tenn. B.J. at 31 (advising that “[a]
careful review of [non-statutory] forms will be needed to determine whether they may
evidence an intent to be governed under pre-existing Tennessee statutes, and if not, whether
they may have validity under the HCDA”).
Like the older Durable Power of Attorney for Health Care Act, the newer Health
Care Decisions Act provides, with nearly identical language:
An advance directive that is executed outside of this state by a nonresident
of this state at the time of execution shall be given effect in this state, if that
advance directive is in compliance with either this part or the laws of the state
of the principal’s residence.
Tenn. Code Ann. § 68-11-1803(h); compare Tenn. Code Ann. § 34-6-215. Again, there is
nothing in the record to suggest that this document did not comply with Mississippi law.
In any event, however, we conclude that it complies with Tennessee’s HCDA, which
provides:
The advance directive must be in writing and signed by the principal. The
advance directive must either be notarized or witnessed by two (2) witnesses.
. . . For the purposes of this section, a witness shall be a competent adult, who
is not the agent, and at least one (1) of whom is not related to the principal
by blood, marriage, or adoption and would not be entitled to any portion of
the estate of the principal upon the death of the principal under any will or
codicil made by the principal existing at the time of execution of the advance
directive or by operation of law then existing. A written advance directive
shall contain an attestation clause that attests that the witnesses comply with
the requirements of this subsection (b).
Tenn. Code Ann. § 68-11-1803(b). This document was signed by the principal and two
witnesses with the required attestation clauses. Therefore, it must be given effect in this
state pursuant to the HCDA.
Because the document in this case is subject to the HCDA rather than the older
Durable Power of Attorney for Health Care Act, we recognize that the particular statute
cited by Owens does not apply here. That statute, Tenn. Code Ann. § 34-6-208, provided,
in pertinent part:
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(a) Subject to any limitations stated in the durable power of attorney for
health care, and, subject to subsection (b) and §§ 34-6-210 -- 34-6-212, a
health care provider is not subject to criminal prosecution, civil liability or
professional disciplinary action except to the same extent as would be the
case if the principal, having had the capacity to give informed consent, had
made the health care decision on the principal’s own behalf under like
circumstances, if the health care provider relies on a health care decision and
both of the following requirements are satisfied:
(1) The decision is made by an attorney in fact who the health care provider
believes in good faith is authorized under this part to make the decision; and
(2) The health care provider believes in good faith that the decision is not
inconsistent with the desires of the principal as expressed in the durable
power of attorney for health care or otherwise made known to the health care
provider, and, if the decision is to withhold or withdraw health care necessary
to keep the principal alive, the health care provider has made a good faith
effort to determine the desires of the principal to the extent that the principal
is able to convey those desires to the health care provider and the results of
the effort are made a part of the principal’s medical records.
However, the newer HCDA contains a very similar provision:
(a) A health care provider or institution acting in good faith and in accordance
with generally accepted health care standards applicable to the health care
provider or institution is not subject to civil or criminal liability or to
discipline for unprofessional conduct for:
(1) Complying with a health care decision of a person apparently having
authority to make a health care decision for a patient, including a decision to
withhold or withdraw health care;
(2) Declining to comply with a health care decision of a person based on a
belief that the person then lacked authority; or
(3) Complying with an advance directive and assuming that the directive was
valid when made and that it had not been revoked or terminated.
Tenn. Code Ann. § 68-11-1810(a). Thus, we believe that the Tennessee Supreme Court’s
application of Tennessee Code Annotated section 34-6-208 in Owens requires the same
result with respect to section 68-11-1810 in this case, involving a power of attorney for
health care and the newer HCDA.
At least with regard to Tennessee Code Annotated section 34-6-208, James had
alternatively argued that the statute would not apply under the facts of this case because
the nursing home did not act in “good faith.” Because section 68-11-1810 also requires
good faith, we have considered James’s argument. However, the record before us simply
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does not support his assertion that the nursing home did not proceed in good faith. James
first points to the fact that the nursing home was aware of David’s diagnosis of Down
Syndrome. However, we note that the HCDA specifically addresses capacity and provides
that “[a]n individual is presumed to have capacity to make a health care decision [and] to
give or revoke an advance directive[.]” Tenn. Code Ann. § 68-11-1812(b) (emphasis
added). “The force of this presumption does not wane as a person ages[.]” Cabany v.
Mayfield Rehab. & Special Care Ctr., No. M2006-00594-COA-R3-CV, 2007 WL
3445550, at *5 (Tenn. Ct. App. Nov. 15, 2007). We also note the testimony of the expert
witness in this case that a diagnosis of Down Syndrome does not equate to a finding of
mental incompetency and that “people with Down syndrome have a spectrum of virtually
being fully independent to needing almost total care throughout their life.” Thus, the fact
that the nursing home coordinator accepted a power of attorney for health care executed by
a person the facility knew to have Down Syndrome does not mean that it did not act in
good faith.
James also suggests that the circumstances surrounding his presentation of the
power of attorney for health care show that he expressed doubt as to the validity of the
document, and therefore, the facility did not exhibit good faith in relying on it.
Accordingly, we will review his testimony about the admissions process in some detail.
During his deposition in September 2019, James testified that when the admissions
paperwork was signed on November 14, 2016, he was present along with his wife and his
sister. David remained in the hospital at that time and had not met the admissions
coordinator who handled the paperwork. James testified that they were given a brief tour
of the facility and then signed the paperwork, with the signing process lasting about thirty
minutes. When asked if he brought the power of attorney for health care with him, James
testified, “I believe that I did.” He recalled the admissions coordinator being “in kind of a
hurry-up process” because she had another appointment or had to go somewhere but added,
“That’s all I remember, and it seemed like she just went through the papers.” He testified
that “she had [my sister] signing some and me signing some, as I recall. I – my mind was
really on David more so than the paperwork being put in front of me.” He testified that the
admissions coordinator may have showed them a video about the facility but he could not
remember. He had “no idea” if she offered them food or drink. When asked if the
coordinator went through the stack “document by document,” he said, “I’m sure that she
had a stack of it in front of her, and – and she went through them. How much explanation
she gave to each one, I can’t remember.”8 When asked if he had an opportunity to ask
questions he said, “I’m sure that the opportunity to ask questions is always there,” but he
could not recall if he asked any questions. He did recall his sister asking a question about
social security checks but added, “that’s all I can remember.” When shown various
documents from the admissions paperwork, James could not recall any of the documents
8
James would later admit that the coordinator “may well have given some explanation to these
things” and “[t]he degree of attention I was paying to it, I can’t recall, but obviously, from what I’ve seen
today, I signed them.”
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but admitted that his signature was on each of them. Regarding the arbitration agreement
itself, he stated, “To tell you the truth, I don’t remember the document. Again, in looking
at it, it does have my signatures on it.” James acknowledged that he was given a copy of
the admissions paperwork, which he still had at his home in Florida. James insisted that
he sincerely could not recall anything else about the admissions process that they had not
already covered in the deposition, stating that he was “stressed and preoccupied” during
that time period and that “[t]he admission process is somewhat of a – a gray area for me.”
Then, during examination by his own attorney, the following exchange occurred:
Q. Okay. And you mentioned on direct-examination, I think, that you
told the representative of Christian Care that you had a power of
attorney.
Do you recall telling the Christian Care representative about that?
A. I -- I recall any time that I had this -- was asked for a power of attorney,
I told people that I had this, I questioned -- I don’t know whether it’s
valid or not, but, nonetheless, I have it. You know, I let everybody
know that there may be some issues with this --
Q. Okay.
A. -- whether that was Christian Care Center, or hospitals, or the ear
doctor, or the eye doctor or anybody that I had occasion to discuss this
with.
Q. So in this --
A. I’ve never told anybody this is an absolute power of attorney that gives
me right to do anything. I said, “Yeah, here it is.”
Q. Okay. So in this instance with the Christian Care representative, did
you tell her that you were not sure whether or not this power of
attorney was valid?
A. Yes.
Q. Okay. And is that because you don’t believe that your brother was
competent to execute it?
A. That’s correct.
MR. CONLEY: Objection.
Q. Okay. Do you think your brother had the capacity, had he known
about the arbitration agreement, to revoke it, to cancel it?
MR. CONLEY: Objection.
A. No.
Counsel for the Nursing Home Defendants then asked:
Q. Do you specifically recall yourself telling the admissions person at
Christian Care that you had some questions about the validity of the
health care power of attorney?
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A. I do.
Q. You do recall that –
A. I --
Q. -- specifically?
A. I specifically remember that. I remember that -- anywhere I’ve shown
this thing, I said, “Hey, I’ve got this power of attorney. It’s got
David’s signature on it. I printed it offline and filled it out and there it
is, and I don’t know how valid it is.”
Q. And you specifically recall that conversation on the day that you had
your brother admitted to Christian Care?
A. Yes.
Q. Were there any -- I thought when I asked you about could you tell me
of any and all conversations you had or said, I don’t remember that
being said in your earlier testimony.
MS. ARNOLD: Object to the form.
A. Well, if it wasn’t said in my earlier testimony, it certainly was said at
the time, because I know that any time I showed that, I made it very
clear that --
Q. Is there --
A. I wasn’t --
Q. Is there anything else you recall about that admission process that
hasn’t been discussed previously?
A. Not that I can think of, no.
Q. There’s a lot you don't recall about it?
A. There is a lot I don’t recall about it.
Q. Right. And I think in your discovery responses, you don’t even recall
signing documents?
A. I really don’t.
MS. ARNOLD: Object to the form.
A. I honestly -- I don’t recall signing all these documents, but I -- I signed
them.
According to James, these facts show that the Nursing Home Defendants “knew or
certainly should have known” that David lacked capacity to execute the power of attorney
for health care in 2012, and also knew or should have known that he himself lacked
authority to sign the arbitration agreement during the admissions process. We disagree.
These facts simply fail to demonstrate that the nursing home did not act in good faith within
the meaning of the statute.
Finally, James suggests that the Owens decision wrongly applied section 34-6-208
to issues involving the enforceability of an arbitration agreement because the statute is
limited to protection from civil liability, criminal prosecution, or professional discipline.
However, this Court is “bound to follow [Tennessee Supreme Court decisions] if they are
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on point.” Publix Super Markets, Inc. v. Tenn. Dep’t of Lab. & Workforce Dev., Lab.
Standards Div., 402 S.W.3d 218, 230 (Tenn. Ct. App. 2012). It is not for this Court to say
whether the statute was properly applied in Owens.
IV. CONCLUSION
In summary, the Tennessee Supreme Court concluded in Owens that it had
“improperly allowed discovery as to the principal’s competence to sign the power of
attorney” for health care, and it determined that discovery should not be permitted
“concerning the validity of the power of attorney or the circumstances surrounding its
execution.” 263 S.W.2d at 891, 889 n.4. As such, we conclude that the trial court in this
case erred in looking beyond the power of attorney for health care to consider the
circumstances surrounding its execution and whether the principal was competent to sign
the power of attorney for health care.9 The decision of the circuit court is reversed and
remanded for consideration of the alternative issue presented below regarding whether the
arbitration agreement was unconscionable. Costs of this appeal are taxed to the appellee,
James A. Welch, as next of kin and administrator ad litem of the Estate of David Neil
Welch, deceased, and on behalf of the wrongful death beneficiaries of David Neil Welch,
for which execution may issue if necessary.
_________________________________
CARMA DENNIS MCGEE, JUDGE
9
We note two cases in which this Court has considered issues regarding the competency of a patient
at the time he or she executed a power of attorney for health care. However, neither of those cases involved
any discussion of the footnote from Owens. In fact, the first opinion was issued by this Court less than a
month after the Owens decision but before the Court granted in part the petition to rehear on February 7,
2008. See Raines v. Nat’l Health Corp., No. M2006-1280-COA-R3-CV, 2007 WL 4322063, at *7 (Tenn.
Ct. App. Dec. 6, 2007) (remanding for the trial court to consider the alternative issue of whether the patient
was “mentally incapable of executing the power of attorney”). The second case, Estate of Czoka v. Life
Care Center of Gray, No. E2020-00995-COA-R9-CV, 2021 WL 1814079, at *7 (Tenn. Ct. App. May 6,
2021), was a Rule 9 appeal in which our review was limited to the single issue of “whether the trial court
correctly concluded that Decedent possessed the requisite mental capacity at the time she executed the
powers of attorney.” There is nothing to indicate that the parties raised any issue regarding Owens, its
discussion of section 34-6-208, or the similar provision in the HCDA. Because the Supreme Court's
guidance on this issue was limited to a footnote and an order granting in part a petition to rehear, and in
light of these two decisions, we encourage the Court to consider this issue in order to definitively resolve
the matter and to give clarity and guidance to all involved in these cases.
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